State v. Jose Luis Villavicencio

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 42198
STATE OF IDAHO, ) 2015 Opinion No. 58
)
Plaintiff-Appellant, ) Filed: September 16, 2015
)
v. ) Stephen W. Kenyon, Clerk
)
JOSE LUIS VILLAVICENCIO, )
)
Defendant-Respondent. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho,
Elmore County. Hon. Michael E. Wetherell; Hon. Lynn G. Norton, District
Judges.
Amended judgment modifying probation terms, vacated, and case remanded.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
Attorney General, Boise, for appellant. Russell J. Spencer argued.
Sara B. Thomas, State Appellate Public Defender; Aaron J. Currin, Deputy
Appellate Public Defender, Boise, for respondent. Aaron J. Currin argued.
________________________________________________
LANSING, Judge Pro Tem
Jose Luis Villavicencio was charged with and convicted of multiple offenses. He entered
into a binding plea agreement requiring ten-year periods of probation. The court imposed ten-
year probation terms but did so in a manner that conflicted with the applicable statutes.
Villavicencio filed a motion to cure his illegal sentences, and it was granted. The court reduced
his probation to legal terms, but those sentences were inconsistent with the plea agreement. The
State appeals and argues that the court erred by imposing amended sentences that do not comply
with the plea agreement.
I.
BACKGROUND
In 2005, the State and Villavicencio entered into a binding plea agreement governing two
separate cases. It called for Villavicencio to plead guilty to two charges of possession of
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methamphetamine, Idaho Code § 37-2732(c)(1). As to the sentences, the parties agreed: (1) that
Villavicencio would receive prison sentences of “one and a half (1-1/2) years determinate
followed by three and a half (3-1/2) years indeterminate, PER FELONY COUNT, for a total
sentence of ten (10) years”; (2) that the court would retain jurisdiction; and (3) that if
Villavicencio successfully completed a period of retained jurisdiction he would be placed on
probation for “a period of ten years.” The district court agreed to be bound by the agreement
and, accordingly, imposed consecutive1 unified five-year sentences with one and one-half-year
fixed terms for each possession charge and retained jurisdiction. Villavicencio successfully
completed his retained jurisdiction program, and the case proceeded to a review hearing.
In 2006, at the jurisdictional review hearing, the court recited its understanding of the
underlying facts and law. The court correctly observed that the maximum sentence for
possessing methamphetamine is seven years, and thus the maximum probation period for a
violation of that statute is seven years. I.C. § 37-2732(c)(1). The court believed, however, that
the prison sentences had been set run concurrently, and therefore that the probation periods
would also have to be concurrent and could not exceed seven years. Accordingly, the plea
agreement’s provision that Villavicencio should be sentenced to ten years of probation presented
a problem in the district court’s perception. The court resolved this problem by holding that
concurrent ten-year probation periods were permissible in this case because the parties had
agreed to it and because that would have been a permissible aggregate duration of probation if
the sentences had been set to run consecutively. On this basis, the district court placed
Villavicencio on probation for two concurrent ten-year terms.
In 2013, more than seven years after Villavicencio’s probation began, the State initiated
probation revocation proceedings, alleging that he had committed new offenses and consumed
alcohol in violation of the conditions of probation. In lieu of challenging these allegations
1
Our record does not clearly indicate whether the prison sentences were imposed to run
consecutively or concurrently. The judgment clearly states that the sentences are consecutive,
but the minutes of the sentencing hearing indicate that the court orally pronounced concurrent
sentences. There is no transcript of the sentencing hearing in the record on appeal. It appears
that the district court, in 2013, found that the orally imposed sentences were consecutive. In
their briefing on appeal, the parties do not acknowledge this ambiguity in the record, and both
seem to regard the original sentences as consecutive. Therefore, we address the matter as it was
presented to us and assume the sentences were ordered to run consecutively. Because we
remand, this question can be addressed below.
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directly, Villavicencio filed a motion to correct illegal sentences pursuant to Idaho Criminal
Rule 35. He argued that his sentences were illegal because ten-year probation terms exceeded
the seven-year maximum statutorily authorized for his offenses. Therefore, he contended, his
probation terms must be reduced to seven years, with the result that his probation ended before
the alleged violations occurred.
The State objected to Villavicencio’s motion. It pointed out that Villavicencio had
agreed to an aggregate ten-year probation term in the plea agreement and had not objected at the
jurisdictional review hearing when the concurrent ten-year terms were imposed. On this basis, it
argued that the use of the word “concurrent” to describe the probation terms was in error and
could be corrected, that Villavicencio had waived his right to complain about his sentence, and
that any error in the sentence was “invited” by Villavicencio.
The district court rejected the State’s arguments and granted Villavicencio’s Rule 35
motion. It concluded that the probation terms could not be modified to run consecutively for a
total of ten years because, in the court’s view, any authority to amend the sentence to conform
with the plea agreement would have to derive from I.C.R. 36, which did not authorize such an
amendment because the error was not clerical in nature. The court then held that the ten-year
probation terms were illegal and entered an amended judgment changing them to seven years.
Because those amended probation periods had expired before Villavicencio allegedly committed
probation violations, the district court’s decision implicitly denied the State’s motion to revoke
his probation. The State appeals from the amended judgment.
II.
ANALYSIS
It is undisputed that the probation terms imposed in 2006 were illegal--Idaho statutes did
not permit concurrent ten-year terms of probation because the maximum prison sentence for
Villavicencio’s offenses was seven years, I.C. § 37-2732(c)(1), and for a felony “the period of
probation may be for a period of not more than the maximum period for which the defendant
might have been imprisoned.” I.C. § 19-2601. The State correctly points out that at the rider
review hearing in 2006, the district court could have imposed consecutive terms of probation
totaling ten years. See State v. Horejs, 143 Idaho 260, 266, 141 P.3d 1129, 1135 (Ct. App.
2006). Doing so would have resulted in sentences that were both compliant with the plea
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agreement and within statutory limits. Unfortunately, those were not the terms that were
imposed, and no action was taken by either party to correct the sentences for over seven years.
The State argues that the district court erred by failing to implement the plea agreement,
which called for consecutive sentences and an aggregate probation period of ten years.
Villavicencio responds that the district court had no subject matter jurisdiction to amend his
sentences in the manner requested by the State because that jurisdiction expired when the
statutorily authorized seven-year probation period ended. According to Villavicencio, the court
possessed subject matter jurisdiction only to grant his Rule 35 motion to reduce the probation
terms to seven years.
A. Subject Matter Jurisdiction
We address first Villavicencio’s jurisdictional argument. He contends that, pursuant to
State v. Kesling, 155 Idaho 673, 315 P.3d 861 (Ct. App. 2013), once he had completed seven
years of probation, the district court was divested of jurisdiction to consider revoking the
probation. In Kesling, the defendant was sentenced to a probation period that exceeded the
duration allowed by law. The State initiated revocation proceedings after the lawful portion of
the probation had elapsed. The defendant objected that the court was not authorized to revoke a
probation that had expired. In that case, we held that the court lacked subject matter jurisdiction
to revoke the probation because the legal period of probation had elapsed.
The Kesling rule that a court lacks subject matter jurisdiction to revoke an elapsed term
of probation derives from the general principle that a court’s authority in a criminal case
terminates when the judgment becomes final. See State v. Jakoski, 139 Idaho 352, 355, 79 P.3d
711, 714 (2003); Kesling, 155 Idaho at 676, 315 P.3d at 864. However, various rules and
statutes prescribe exceptions to this general principle and grant authority to undertake certain
post-judgment actions. For example, Idaho Code sections 19-2602 and 19-2603 authorize the
revocation of probation and Rule 35(a) authorizes the court to amend an illegal sentence “at any
time.” Neither these statutes nor Rule 35(a) specify the order in which the court should
adjudicate the issues when, as here, there are pending both a motion to revoke probation and a
motion to correct an illegal sentence.
Nor does Kesling answer that question. Kesling was decided on narrow grounds--we
considered only whether a court had jurisdiction to revoke an expired probation. There, it was
not contended that the district court could have amended the period of probation in a way that
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would have rendered it lawful. Rather, it was undisputed that the maximum lawful period of
probation had elapsed and that the district court lacked jurisdiction to revoke an elapsed
probation. Accordingly, whether the sentence could have or should have been amended to a
different, lawful sentence was not before this Court.
In this case, where the question is squarely presented, we hold that a Rule 35(a) motion to
amend an illegal sentence may be adjudicated first. Fundamentally, a court must determine
whether the defendant is serving a lawful term of probation before deciding whether to revoke it.
When a sentence is found to be unlawful, Rule 35 authorizes the court to correct it. If the
resulting amendment provides for a term of probation that has already elapsed, then the court
will have no jurisdiction to entertain revocation proceedings. But if the court lawfully can, and
does, amend the sentence to specify a probation period that has not expired, the court will then
have jurisdiction to entertain revocation proceedings. Here, Villavicencio’s judgment on its face
established ten-year terms of probation, but as structured, those terms were illegal. If that
duration of probation could be restructured to make it legal, the court possessed jurisdiction to do
so by virtue of I.C.R. 35(a). Villavicencio’s contention that he must be treated as if his probation
was for two concurrent seven-year terms would require the district court to make a revocation
decision based upon a hypothetical judgment--a judgment with seven-year probation terms that
might exist after the illegal sentences were cured. We reject that procedure because it does not
take into account the effect of Rule 35(a). We hold that the court may first address the
Rule 35(a) motion by amending the judgment to correct the illegal sentences and then use the
amended judgment when addressing the motion to revoke probation.
B. Scope of Discretion Upon Correcting an Illegal Sentence
Having decided that the Rule 35(a) motion to correct Villavicencio’s sentences should be
decided first, we next address whether, in responding to that motion, the district court was
obligated to reduce the probation terms to seven-year concurrent terms, the minimum action
required to resolve the illegality, or whether the court could have reformulated the probation to
two consecutive five-year periods as requested by the State. It appears that the district court was
of the view that Rule 35(a) granted authority only to remedy the illegal portion of the sentence
and that broader changes could be made only if such changes were authorized under another rule,
such as I.C.R. 36.
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In examining this issue, we find that Idaho precedent includes two lines of authority
which, at least from a superficial view, appear to be conflicting. The first line of authority
suggests that, in correcting an illegal sentence, the court has discretion to impose any sentence
that could have originally been lawfully imposed. These cases begin with State v. Lindquist, 101
Idaho 688, 619 P.2d 1141 (1980). The defendant there was sentenced to a fixed thirty-year
sentence for second degree murder pursuant to a statute that had not yet been enacted when the
crime was committed. That sentence was illegal because, at the time of Lindquist’s offense, the
Idaho statutes authorized only indeterminate sentences. Id. at 691, 619 P.2d at 1144. Upon
determining that the sentence was unlawful, the Idaho Supreme Court remanded for the trial
court to resentence the defendant “to any punishment permitted for the offense of second degree
murder under the provisions of statutes in effect at the time of the commission of the crime in
question here.” Id. at 689, 619 P.2d at 1142. Although the Supreme Court’s opinion did not
specifically address whether Lindquist’s sentence could be increased on remand, it did not limit
the trial judge to imposition of an indeterminate sentence of thirty years or less.
This Court addressed a similar issue in State v. Hoisington, 105 Idaho 660, 671 P.2d 1362
(Ct. App. 1983), where the defendant had been sentenced to a fixed eight-year term for rape. As
in Lindquist, the fixed sentence was illegal because the fixed sentencing statute did not become
effective until after the commission of the offense. When the illegality was brought to the trial
court’s attention, it amended the sentence to an indeterminate term of twenty years. Under the
applicable sentencing laws, Hoisington would then be eligible for parole upon service of one-
third of the twenty-year sentence but, if not paroled, could remain in prison for the full twenty-
year term. On appeal, Hoisington argued that the illegality should have been corrected by
simply amending the illegal fixed eight-year sentence to an indeterminate eight-year sentence,
which would have made him eligible for parole after less than three years of imprisonment. This
Court disagreed. Relying upon Lindquist, we held that the new twenty-year indeterminate
sentence was lawful because, in correcting an illegal sentence, the trial court was permitted to
impose any punishment authorized for the offense under the statutes in effect at the time of the
crime’s commission. Hoisington, 105 Idaho at 662, 671 P.2d at 1364.
The Court of Appeals again addressed the correction of an illegal sentence in State v.
Money, 109 Idaho 757, 710 P.2d 667 (Ct. App. 1985), where the defendant was sentenced to a
twelve-year indeterminate term for second degree murder, together with a consecutive
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indeterminate two-year period for use of a firearm. Shortly after the sentencing, the trial court
sua sponte corrected the sentence by increasing the enhancement period from two years to three
years because three years was the minimum required by the enhancement statute, I.C. § 19-2520.
On appeal, this Court considered two issues relating to the sentence--whether Money’s right to
due process was violated because he was not present when his sentence was corrected and
whether the trial court erred because it considered only one segment of the sentence, the
enhancement, instead of considering the entire sentence when it corrected the illegality. We held
that the trial court had erred in both of those ways and remanded for resentencing in a proceeding
at which Money would be present and in which the court would reconsider the entire sentence.
Money, 109 Idaho at 760, 762, 710 P.2d at 670, 672. In the course of its opinion, and referring to
Lindquist and Hoisington, this Court said that when correcting an illegal sentence, “a trial court
is not bound by the terms of the original sentence,” but, rather, “may resentence to any
punishment permitted for the offense under the provisions of the applicable statutes.” Money,
109 Idaho at 759, 710 P.3d at 669. However, in Money, there was no argument that in correcting
an illegal sentence a court is prohibited from increasing the sentence more than required to
correct the illegality. Therefore, this broad statement in Money is dicta.
The most recent opinion in this line of authority is State v. Edghill, 155 Idaho 846, 317
P.3d 743 (Ct. App. 2014). There, as part of the defendant’s sentence for vehicular manslaughter,
the trial court suspended his driver’s license for life. However, in response to a motion by
Edghill, the court later amended the judgment by adding a proviso that it would consider a
petition to allow Edghill to obtain a driver’s license after the expiration of ten years from the
original judgment. Over a period of years, Edghill brought various motions requesting relief
from the lifetime suspension. In response to these, the district court issued a series of successive
orders authorizing temporary conditional driving permits that allowed Edghill to drive an all-
terrain vehicle. When the last of these expired, Edghill filed a motion to reinstate his driving
privileges. At that point, a new district judge had been assigned to the case. The new judge held
that the provision allowing Edghill to continually petition for driving privileges was illegal, and
therefore struck that portion of the sentence, leaving in place the lifetime suspension of the
license. Edghill appealed, arguing that upon determining that part of the license suspension was
illegal, the district court should have resentenced him regarding the entire license suspension
instead of merely excising the illegal portion that provided an opportunity for reinstatement.
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This Court ultimately agreed with Edghill’s contention and remanded for the district court to
reconsider all parameters of the license suspension, including its length, rather than just deleting
the provision that was illegal. In the course of reaching that decision, however, the Edghill
opinion presents a considerable quantity of dicta, including some that reiterates the statements
from Hoisington and Money indicating that a court which is called upon to correct an illegal
sentence “may resentence to any punishment permitted for the offense under the provisions of
the applicable statutes.” Edghill, 155 Idaho at 850, 317 P.3d at 747 (quoting Money, 109 Idaho
at 759, 710 P.2d at 669).
The foregoing cases state as a general proposition that upon correcting an illegal
sentence, the sentencing court’s discretion is constrained only by provisions of sentencing law
applicable at the time the offense was committed. However, a second line of authority also
exists which indicates that there are limits on that discretion. It commenced with State v.
Mendenhall, 106 Idaho 388, 679 P.2d 665 (Ct. App. 1984). In that case, while the defendant was
in jail awaiting sentencing for grand larceny, he escaped. After he was rearrested several years
later, he was convicted of escape and ultimately was sentenced for both offenses. The court
imposed identical, concurrent five-year sentences for the grand larceny and the escape but
thereafter suspended the sentences and placed Mendenhall on probation. After the probation
terms were violated, the district court revoked probation but restructured the sentences to require
that the escape sentence be served consecutive to the grand larceny sentence because the
governing statute required that if a person who was convicted of escape from custody was
charged with or convicted of a felony, any sentence of confinement for the escape must be
consecutive to the confinement imposed for the underlying felony. Id. at 391, 679 P.2d at 668.
Mendenhall argued on appeal that the district court exceeded its authority when it increased his
punishment by making the previously concurrent sentences consecutive. We held that the
district court had not acted properly by simply converting the original concurrent sentences into
consecutive terms of equal duration, which effectively doubled Mendenhall’s punishment. We
noted that it was unnecessary to increase the punishment in order to correct the illegality.
Rather, the sentencing court could have brought the sentences into compliance with the statute
by adjusting the term of each individual sentence so that, when served consecutively, the two
sentences would not cumulate to more than five years. We said, “By making the sentences
consecutive without adjusting their terms, the judge went beyond mere correction of the
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sentences. He imposed a harsher penalty.” Id. at 394, 679 P.2d at 671.2 We concluded that the
range of corrective sentences was confined to “those which will not increase the aggregate
penalty imposed.” Id. at 395, 679 P.2d at 672.
We followed this precedent in State v. Steelsmith, 153 Idaho 577, 288 P.3d 132 (Ct. App.
2012), where the sentencing court imposed a prison sentence but retained jurisdiction for one
year pursuant to I.C. § 19-2601(4). At the sentencing hearing, the court indicated that it would
defer imposition of costs, fines, and other assessments and would defer deciding on a driver’s
license suspension until a review hearing could be conducted at the conclusion of the retained
jurisdiction. At the jurisdictional review hearing, the court declined to place Steelsmith on
probation, suspended his driving privileges for three years, and imposed various fines, costs, and
fees. On appeal, Steelsmith asserted that the district court lacked jurisdiction to impose the fines,
costs, and driver’s license suspension at the jurisdictional review hearing. On appeal, this Court
agreed with Steelsmith that the retention of jurisdiction under I.C. § 19-2601(4) was limited to
jurisdiction for the court to suspend a sentence of imprisonment and impose terms of probation,
but did not authorize the sentencing court to add fines, costs, and a driver’s license suspension
after the judgment of conviction had been entered. We then considered the scope of the court’s
authority under Idaho Criminal Rule 35(a), which authorizes a sentencing court to correct a
sentence that is illegal from the face of the record at any time. We held that Rule 35(a)
authorized the addition of terms to a sentence at the end of the retained jurisdiction period if
those additions were necessary to correct a sentence that was otherwise illegal. Steelsmith, 153
Idaho at 582, 288 P.3d at 137. Relying on Mendenhall, we held that this authority permits a
court to increase the sentence “only insofar as necessary to correct an illegality,” and therefore
did not authorize the suspension of Steelsmith’s license beyond the one-year mandatory
minimum term or authorize fines in excess of amounts mandated by statute. Lastly, we held that
2
The Court of Appeals concluded that modifying the sentences to impose a harsher
penalty upon revocation of probation violated a principle expressed by the Idaho Supreme Court
in State v. Pedraza, 101 Idaho 440, 614 P.2d 980 (1980). The Court of Appeals thereby
interpreted Pedraza rather expansively, for Pedraza did not deal with the correction of an illegal
sentence. Rather, in Pedraza, the Supreme Court merely held that a trial court did not have
authority, upon revoking probation, to simply resentence the defendant to a harsher term of
imprisonment. Nevertheless, Mendenhall itself establishes a precedent prohibiting a court, in
correcting an illegal sentence, from increasing the sentence more than would be required to
correct the illegality.
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because certain of the costs and fees added to Steelsmith’s judgment at the jurisdictional review
hearing did not constitute punishment for the offense and therefore were not part of the sentence,
the district court was not authorized to add them by I.C.R. 35(a).
Although the foregoing lines of authority, one commencing with Lindquist and the other
commencing with Mendenhall, contain broad statements that are inconsistent, we conclude that
they can be reconciled when dicta is disregarded and the particular circumstances of the cases are
considered. First, because neither Money nor Edghill presented the question of whether a court,
in correcting an illegal sentence, may increase the sentence more than is required to cure the
illegality, they are not instructive on that issue. Their general statements concerning the breadth
of a sentencing court’s authority in that circumstance are dicta. The remaining cases suggesting
that a court called upon to correct an illegal sentence may impose any sentence that would have
been lawful under the statutes in effect at the time of the offense are Lindquist and Hoisington.
In each of those cases, the appellate court was considering a very specific circumstance: the
trial courts had imposed fixed sentences under a statutory scheme that was not yet in effect when
the crime was committed, and those courts had to correct the sentences by imposing
indeterminate sentences, as mandated by the prior statutory sentencing scheme. Thus, the courts
in Lindquist and Hoisington were not faced with sentences that were illegal merely because they
did not comply with the minimum or maximum period of incarceration authorized for the offense
or failed to implement statutory requirements that certain sentences be consecutive. Rather, in
Lindquist and Hoisington, the initial sentences were illegal because the sentencing court had
utilized a statutory sentencing structure that was entirely different from the sentencing structure
that applied when the offenses occurred. In each case, the applicable statute called for
indeterminate sentences, whereas the trial courts had initially imposed fixed sentences based
upon subsequently enacted statutes. In that circumstance, it is apparent that correcting the
illegality would require the sentencing court to start over and resentence the defendant with the
correct statutory sentencing structure in mind. In those cases, the illegality could not be
corrected by merely tinkering with the original sentences, nor could the sentencing court have
imposed a correct, indeterminate sentence that would even roughly approximate the originally
imposed fixed term because the two sentencing systems were so different. Because
indeterminate sentences, as authorized when the offenses were committed, permitted release on
parole upon service of one-third of the indeterminate term, merely converting the original fixed
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sentences in Lindquist and Hoisington to indeterminate terms of the same duration would have
vastly decreased the actual required period of imprisonment. Alternatively, imposing
indeterminate terms of three times the original fixed sentence would have required the same
minimum term of imprisonment but, if parole were denied, would have allowed the defendants to
be confined for three times as long as the term contemplated in the original sentences. Thus, in
the circumstances presented by Lindquist and Hoisington, it is easy to understand why the
appellate court held that the sentencing court was authorized to correct the initial illegal
sentences by imposing any sentence that could have been ordered under the statutes in effect
when the crime occurred.
The cases comprising the “contrary” line of authority, Mendenhall and Steelsmith,
presented a very different type of illegality in the original sentences and are more akin to the
situation presented here. The illegality in those cases did not arise from legislative redesign of
the entire sentencing structure such that the error could not be corrected without throwing out the
entire original sentence and starting over. For this reason, we conclude that Mendenhall and
Steelsmith are not inconsistent with Lindquist and Hoisington. Rather, broad discretion for the
sentencing court to entirely disregard the original, illegal sentence and resentence the defendant
to any punishment authorized by statute when the offense occurred must be limited to the
circumstances presented in Lindquist and Hoisington or analogous circumstances.
In the case before us, where the illegality in Villavicencio’s sentence is merely that the
duration of the probation terms exceeded that allowed by statute, we conclude that the scope of
the trial court’s authority to correct the sentences under I.C.R. 35(a) is governed by Mendenhall
and Steelsmith. That is, the district court did not possess authority pursuant to Rule 35(a) to
impose any sentence that could have been initially imposed. Rather, the court was constrained to
not increase Villavicencio’s cumulative sentence except as necessary to correct the illegality.
Although this limitation applied in Villavicencio’s case, it did not confine the court’s discretion,
as the district court apparently believed, to reducing the concurrent ten-year probation terms to
concurrent seven-year terms. Rather, the court possessed discretion to restructure the sentences,
as the State requested, to impose two consecutive five-year terms of probation because doing so
would have been compliant with the sentencing statutes and would not have increased
Villavicencio’s probation period above the previously imposed (illegal) ten-year concurrent
terms. That is, Mendenhall and Steelsmith do not require a court that is correcting an illegal
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sentence to impose the least legal sentence permissible or necessary to correct the illegality;
rather, they prohibit increasing the sentence beyond that necessary to render the sentence legal.
In this case, reformulating the probation period from two illegal concurrent ten-year terms into
two consecutive terms aggregating to ten years would correct the illegality without increasing
Villavicencio’s sentence and would have effectuated the plea agreement.
When a trial court’s discretionary decision is reviewed on appeal, the appellate court
must determine: (1) whether the lower court correctly perceived the issue as one of discretion;
(2) whether the lower court acted within the boundaries of such discretion and consistently with
any legal standards applicable to the specific choices before it; and (3) whether the lower court
reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d
1331, 1333 (1989). In this case, the district court believed that it could amend the sentences only
by reducing them to the maximum term allowed by statute and therefore could not amend them
to conform to the plea agreement by imposing consecutive terms of probation that would
aggregate to ten years. Because the district court did not recognize the scope of its discretion
when addressing Villavicencio’s Rule 35(a) motion, we remand to allow the district court to
reconsider the motion to correct the illegal sentences with knowledge of the full scope of its
discretion.
III.
CONCLUSION
The district court here possessed subject matter jurisdiction to correct Villavicencio’s
illegal sentences pursuant to I.C.R. 35(a), but when the district court amended the probation
terms to correct the illegality, it did not recognize the scope of its discretion. Accordingly, we
vacate the amended judgment and remand for further proceedings consistent with this opinion.
Chief Judge MELANSON and Judge GRATTON CONCUR.
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